9.  The applicant was born in 1949 and lives in Surrey. He has suffered from autism since birth. He is unable to speak and his level of understanding is limited. He is frequently agitated and has a history of self-harming behaviour. He lacks the capacity to consent or object to medical treatment. For over thirty years he was cared for in Bournewood Hospital (“the hospital”), a National Health Service Trust hospital. He was an in-patient at the Intensive Behavioural Unit (“IBU”) of the hospital from its inception in or around 1987. The applicant’s responsible medical officer (who had cared for him since 1977) was Dr M. (clinical director of learning disabilities, deputy medical director and consultant psychiatrist for psychiatry of learning disabilities).
10.  In March 1994 he was entrusted on a trial basis to paid carers, Mr and Mrs E., with whom he successfully resided until 22 July 1997. He was not formally discharged, and the hospital remained responsible for his care and treatment. From 1995 onwards the applicant attended on a weekly basis a day-care centre run by the local authority.
11.  On 22 July 1997 the applicant was at the day-care centre when he became particularly agitated, hitting himself on the head with his fists and banging his head against the wall. Staff could not contact Mr and Mrs E. and got in touch with a local doctor, who administered a sedative. The applicant remained agitated and, on the recommendation of the local authority care services manager (A.F.) with overall responsibility for the applicant, he was taken to the accident and emergency unit at the hospital.
12.  At the hospital, the applicant remained agitated and anxious and was received and assessed by Dr P. (acting consultant psychiatrist – learning disabilities services) as being in need of in-patient treatment. He was transferred, with the physical support of two nursing assistants, to the hospital’s IBU. He was recorded as making no attempt to leave. Having consulted, Dr P. and Dr M. considered that the best interests of the applicant required his admission for in-patient treatment. Dr M. did consider his committal under the Mental Health Act 1983 (“the 1983 Act”) but concluded that that was not necessary as the applicant was compliant and did not resist admission. The applicant was therefore admitted as an “informal patient”. Dr M. later confirmed (in her submissions in the judicial review proceedings referred to below) that, if the applicant had resisted admission, she would have detained him compulsorily under the 1983 Act as she was firmly of the view that he required in-patient treatment.
13.  Dr M.’s personal attendance notes for that day record the reports she had received of extremely disturbed behaviour at the day-care centre on that day and previously; the suggestion by A.F. that the applicant may have been suffering from a cyclical mood disorder and the recommendation that the applicant be assessed to establish any action required; Dr M.’s detailed consultation throughout the day with the applicant’s local doctor, Dr P., A.F., ward staff and other care professionals; the conclusion that, given the escalation of behavioural problems, the applicant required readmission for “thorough investigation and treatment” but that he would not be “sectioned” as he was “quite compliant” and had “not attempted to run away”; the numerous unsuccessful attempts to contact the applicant’s carers; and the decision to discourage visits by the applicant’s carers as it risked causing them and the applicant distress.
Her notes for the following day, 23 July 1997, recorded that the applicant was calm, had complied with all care needs and accepted the change without problem; that his carers were “happy with [the] suggestion not to visit for a few days”; and the clinical opinion that, given the reports of escalating behavioural problems and self-harm and the suggestion by A.F. of a cyclical mood disorder, time was needed to observe, assess and administer appropriate treatment. Various tests were proposed to rule out any “organic pathology”. The applicant was to be referred to the psychology and speech therapist for assessment and a care plan was to be drawn up as appropriate “for maintenance purposes on discharge”. His carers were to be made aware of the need not to visit until the team treating the applicant felt confident for them to do so.
14.  In its letter dated 23 July 1997 to the applicant’s social worker (copied to Dr P.), the day-care centre enclosed a detailed report of the incident that had occurred the previous day and outlined serious behavioural issues to be considered by the applicant’s health care professionals before he could be allowed to return to the day-care centre. It was noted that the applicant’s outbursts had increased over the previous few months and that he had been finding it increasingly difficult to cope with his environment and group. A summary of the applicant’s behaviour and attendance at the day-care centre between January and July 1997 was also included.
15.  On 18 August 1997 Dr M. prepared a detailed report on the applicant’s history, care and progress for the manager (learning disabilities) of the local health authority as a follow-up to their recent discussions regarding the applicant. Dr M. indicated that the hospital was coming to the conclusion that the applicant, as well as being autistic, suffered from a mood disorder, and noted that his discharge at that time would be against medical opinion.
16.  On 22 August 1997 a consultant psychiatrist in learning disabilities (Dr G.) assessed the applicant at the request of Mr and Mrs E. His report described the applicant as suffering from a severe learning disability, autistic traits and a possible cyclical mood disorder. That psychiatrist recommended further assessment of the applicant in the IBU and better cooperation between the hospital’s professional team, the day-care centre and Mr and Mrs E.
17.  On 29 October 1997 the Court of Appeal indicated (see the proceedings detailed below) that the applicant’s appeal would be decided in his favour. Accordingly, on that day the applicant was detained in the hospital under section 5(2) of the 1983 Act (following receipt of a notice from a doctor in charge of an in-patient that an application ought to be made for the latter’s detention for, inter alia, treatment under section 3 of the 1983 Act, the patient may be detained for up to seventy-two hours to allow for that application to be processed). On 31 October 1997 the applicant was admitted for treatment as an involuntary patient under section 3 of the 1983 Act (two medical practitioners having recently examined the applicant would have certified his detention for treatment as necessary).
18.  On 2 November 1997 the applicant’s carers visited him for the first time since his readmission in July 1997.
19.  On 4 November 1997 the applicant’s legal representatives applied for a review of his detention by a Mental Health Review Tribunal (“MHRT”). Legal aid was granted to instruct an independent psychiatrist to prepare a report. The psychiatric report, dated 27 November 1997, was prepared jointly by a consultant psychiatrist and a registrar in the psychiatry of learning disability, both attached to the Department of Psychiatry at the University of Cambridge. The psychiatrists recommended the applicant’s discharge because they were of the opinion that his mental disorder was “currently neither of a nature or degree to warrant continued detention in hospital, nor [was] it necessary for his health or safety or for the protection of others”.
On 4 December 1997 the applicant’s representatives applied to the hospital managers for his release (section 23 of the 1983 Act), a meeting of the managers taking less time to convene than a meeting of the MHRT.
20.  The multidisciplinary team responsible for the applicant’s care and treatment decided that he had settled enough to be managed at home, and on 5 December 1997 he was released on leave of absence (under section 17 of the 1983 Act) into the care of Mr and Mrs E.
21.  On 9 December 1997 Dr P. prepared a report for the forthcoming managers’ review meeting. He noted that the applicant’s discharge on 5 December 1997 under section 17 of the 1983 Act was to be complemented by weekly psychiatric outpatient follow-up appointments, continued medication and monitoring by a community nurse. Dr P. was hopeful that the community team and their consultant psychiatrist could take over the applicant’s care so that he could be formally discharged from the hospital.
22.  On 12 December 1997 the hospital managers decided to formally discharge the applicant to the carers (section 23 of the 1983 Act).
23.  The first letter from Dr M. to Mr and Mrs E. after the applicant’s admission to the hospital was dated 23 July 1997. Having noted the attempts made to contact them on 22 July 1997, Dr M. outlined in detail what had happened and how the applicant was progressing. Dr M. indicated that, while the aim was to discharge the applicant to them as soon as possible, she was unable to predict the length of his stay as it depended on the completion of all necessary investigations and assessments. Dr M. indicated that visits would be unwise until the hospital staff felt that it would be appropriate, in order to avoid the applicant thinking that he could go home with Mr and Mrs E. following each visit at a time when he was “not clinically fit for discharge”. Dr M. invited Mr and Mrs E. to contact her about meeting her the following week.
24.  Dr M. sent a further detailed update on the applicant’s care, assessments and progress to Mr and Mrs E. on 31 July 1997. Having noted Mr and Mrs E.’s requests to staff to visit the applicant, Dr M. indicated that the current serious observational assessment would be prejudiced by such visits and suggested that the situation be reviewed the following week. Dr M. pointed out that the applicant was not clinically fit for discharge.
25.  Since Mr and Mrs E. had expressed concerns to staff at the hospital about the applicant’s care and treatment, Dr M. sent a long letter to Mr and Mrs E. on 6 August 1997 in which she explained the clinical team’s responsibility to provide the applicant with the care and clinical input he required. In particular, Dr M. noted:
“I would like to take the opportunity to stress, through this correspondence, that we, as a Clinical Team, within the [IBU], are here, primarily to provide the treatment for [the applicant] who was admitted under our care, as an emergency. It would be extremely irresponsible of us not to provide [the applicant] with the care and the clinical input that he deserves and is in need of. His disposal/discharge from within the unit is dependent ... on the Multidisciplinary Clinical Professionals’ considered views, following their assessment and the work that they intend doing with [the applicant], specifically, in relation to his challenging behaviour and/or mental health needs. As I have stressed, in my earlier correspondence, these things do take time and unfortunately we have to be a little patient to allow the professionals some room and space to carry on with their work in the provision of care ... [The applicant] has been admitted to the [IBU] on an ‘informal’ basis and this is not a time-limited admission. I am not sure if you have misunderstood his status and are under the impression that perhaps he was admitted and held under ‘the Mental Health Act’. Even then, there is no ‘one month’ time-limit, as it all depends on the patient’s fitness for discharge ... On behalf of the Clinical Team, I would like to stress that [the applicant] is being treated within the [IBU] and once he is fit for discharge, he will be discharged back to the address from where he was admitted, with a ‘Treatment Plan’ which will include all aspects of his care and a ‘maintenance plan’ prescribed.”
Given the ongoing treatment and assessments, it was not possible to specify a discharge date. Dr M. repeated her offer to meet Mr and Mrs E. to discuss the applicant’s care.
26.  In a further letter of 2 September 1997, Dr M. confirmed to Mr and Mrs E. that the conclusions drawn from the assessments to date meant, and the recent clinical professionals’ meeting had decided, that the applicant was to be “fully” referred for care and treatment to the IBU and that his stay was likely to be a long one. She invited Mr and Mrs E. to attend a clinical meeting about the applicant’s care and treatment on 18 September 1997 and offered to meet Mr and Mrs E. separately to discuss, inter alia, the subject of visits.
27.  Mr and Mrs E. replied in a letter of 5 September 1997 that they could not agree with the suggested plan for the applicant and would be in touch again prior to the relevant meeting. By a letter dated 16 September 1997, Mr and Mrs E. confirmed that they would not be able to attend the meeting on 18 September 1997 as they were seeking legal advice. Dr M. responded by letter dated 19 September 1997 expressing regret that Mr and Mrs E. felt that their attendance at the clinical meeting could jeopardise the applicant’s position. In a separate letter of the same date, Dr M. outlined the results of the clinical meeting, including a recommendation that Mr and Mrs E. visit the applicant once a week, and requested them to contact her to arrange this.
28.  On 20 October 1997 Dr M. reassured Mr and Mrs E. that the subject of them visiting the applicant had been discussed at the hospital at some length and encouraged Mr and Mrs E. to meet her to discuss the applicant’s needs.
29.  Detailed behaviour management guidelines were issued on 27 November 1997 by the psychology service of the hospital to, among others, Dr M., Mr and Mrs E., the applicant’s social worker and other therapeutic services that were to be involved in the applicant’s future care. Appendix 1 was a detailed clinical description of the applicant’s mental state (autism and a cyclical mood disorder), needs and reactions prepared on the basis of extensive psychiatric and behavioural observations and assessments, with a view to achieving a global approach to his condition, treatment and care. Appendix 2 contained an extremely detailed “communication dictionary” which was designed to enhance communication with the applicant through voice, action and routine. Appendix 3 contained recording charts.
30.  By a letter of 2 December 1997 to the applicant’s legal representatives, Dr M. acknowledged receipt of the guidelines of 27 November 1997 (described above) and explained the clinical team’s plans regarding the applicant’s release on leave of absence in the near future with a view to a possible full discharge at a later date.
31.  In or around September 1997, the applicant, represented by his cousin and “next friend”, applied for leave to apply for judicial review of the hospital’s decision to admit him on 22 July 1997, for a writ of habeas corpus and for damages for false imprisonment and assault (a technical assault associated with his admission).
32.  The High Court refused the application. It found that, although the 1983 Act provided a comprehensive statutory regime for those formally admitted to psychiatric care, section 131(1) of the 1983 Act preserved the common-law jurisdiction in respect of informal patients. Since the applicant had not been “detained” but had been informally admitted and since the requirements of the common-law principle of necessity had been satisfied, his application was rejected. 2.  The Court of Appeal’s judgment of 2 December 1997 (R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 2 Weekly Law Reports 764).
33.  Lord Woolf, Master of the Rolls, delivered the principal judgment. On the question of whether the applicant was “detained”, he noted that it was agreed that this was a question of objective fact which did not depend on the presence or absence of consent or knowledge. He considered that a person was detained in law if those who had control over the premises in which he was situated intended that he should not be permitted to leave and had the ability to prevent him doing so. He went on:
“We do not consider that the [High Court] judge was correct to conclude that [the applicant] was ‘free to leave’. We think it is plain that, had he attempted to leave the hospital, those in charge of him would not have permitted him to do so. ... Mr and Mrs E. had looked after [the applicant], as one of the family, for over three years. They had made it plain that they wanted to take him back into their care. It is clear that the hospital was not prepared to countenance this. If they were not prepared to release [the applicant] into the custody of his carers, they were not prepared to let him leave the hospital at all. He was and is detained there.”
34.  Lord Woolf also found that the right to detain a patient for treatment for mental disorder was to be found only in the 1983 Act, the provisions of which applied to the exclusion of the common-law principle of necessity. Section 131 which preserved the right to admit a patient informally applied only to a patient who had the capacity to and did consent to his admission. Since the applicant had been admitted for treatment without his consent and the other formalities required by the 1983 Act, his detention was unlawful:
“It follows from our judgment that the whole approach of the [hospital] in this case was based on a false premise. It was based on the belief that they were entitled to treat [the applicant] as an in-patient without his consent as long as he did not dissent. That was a wrong approach. They were only allowed to admit him for treatment if they complied with the statutory requirements. ... [W]here [the 1983 Act] covers the situation, no necessity to act outside the statute can arise. The [hospital’s] powers to act under the common-law doctrine of necessity can arise only in relation to situations not catered for by [the 1983 Act].”
35.  The Court of Appeal awarded nominal damages and granted leave to appeal to the House of Lords. 3.  The House of Lords’ judgment of 25 June 1998 (R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1999] Appeal Cases 458).
36.  The House of Lords granted leave to, among others, the Mental Health Act Commission to intervene in the proceedings. In its submissions to the House of Lords, the Commission outlined the beneficial consequences to patients of the Court of Appeal’s conclusion that persons in the applicant’s position were “detained” for the purposes of the 1983 Act, which included the application to such persons of the substantive and procedural safeguards of the Act. The Commission also described the survey it had completed since the Court of Appeal’s judgment by sending a questionnaire to all National Health Service Trust hospitals (and registered nursing homes). Sixty-two percent of those establishments responded, from which the Commission was able to submit that, if the Court of Appeal’s judgment were applied to patients such as the applicant, there would be an additional 22,000 detained patients resident on any one day and an additional 48,000 compulsory admissions per year under the 1983 Act.
37.  The House of Lords gave judgment on 25 June 1998 and unanimously allowed the appeal. Lord Goff (with whom Lords Lloyd and Hope agreed) delivered the principal judgment. Lords Nolan and Steyn also agreed that the appeal should be allowed but for different reasons.
38.  Having considered the drafting history of section 131 of the 1983 Act, Lord Goff disagreed with the Court of Appeal and concluded that section 131 applied to patients who consented as well as to compliant but incapacitated patients. He underlined, however, that the statutory history of the section, which put the matter beyond all doubt, appeared not to have been drawn to the attention of the Court of Appeal and that the Court of Appeal did not have the benefit, as did the House of Lords, of assistance from counsel appearing for the Secretary of State. As to the basis upon which a hospital was entitled to treat, and to care for, patients who were admitted as informal patients under section 131(1) but lacked the capacity to consent to such treatment or care, Lord Goff stated as follows:
“It was plainly the statutory intention that such patients would indeed be cared for, and receive such treatment for their condition as might be prescribed for them in their best interests. Moreover, the doctors in charge would, of course, owe a duty of care to such a patient in their care. Such treatment and care can, in my opinion, be justified on the basis of the common-law doctrine of necessity ... (Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1) It is not therefore necessary to find such justification in the [1983 Act] itself, which is silent on the subject. It might, I imagine, be possible to discover an implication in the statute providing similar justification; but even assuming that to be right, it is difficult to imagine that any different result would flow from such a statutory implication. For present purposes, therefore, I think it appropriate to base justification for treatment and care of such patients on the common-law doctrine.”
39.  Lord Goff then considered whether the applicant had been “unlawfully detained” as alleged and as found by the Court of Appeal. He pointed out that for the tort of false imprisonment to be committed there must, in fact, be a complete deprivation of, or restraint on liberty: an actual and not a potential deprivation of liberty went towards constituting the tort. Lord Goff then turned to the facts and quoted extensively from the affidavit (sworn on 3 October 1997) of Dr M.:
“At 11 o’clock on 22 July 1997 I was contacted by ... [the] social worker and [the applicant’s] case manager. She advised me that there had been an incident at Cranstock Day Centre, where [the applicant] had been attending since 1995, when [the applicant] had seriously self-harmed and was extremely disturbed. She said that he had to be sent to the Accident & Emergency Department and she requested assistance from the psychiatric services to assess [the applicant] with a view to admitting him if necessary. One of my team members, [Dr P.], staff grade psychiatrist, attended the Accident & Emergency Department as requested. His notes state that he took a history from ... the team manager at Cranstock Day Centre who reported that since March 1997 [the applicant’s] episodes of self-injurious behaviour had increased in severity. On 22 July 1997 whilst he was at Cranstock he had been agitated, hyperventilating, pacing up and down and hitting himself on the head with his fists. He was also banging his head on the wall. The whole area had to be evacuated to avoid disturbance and assure the safety of others. He was given 4 mgs of Diazepam to try to calm him down at the time but this had no effect. The GP was therefore called who administered 5 mgs of Zimovane. However he still remained agitated in the Accident & Emergency Department. He was assessed and treated at A & E. [Dr P.] later assessed [the applicant] as being agitated and very anxious. He noted redness of both his temples, that he was punching his head with both his fists at times and hyperventilating. [Dr P.] assessed that [the applicant] required in-patient treatment and transferred [the applicant] to the Behavioural Unit. [Dr P.] noted that [the applicant] ‘makes no attempt to leave’. I recorded that we considered whether it was necessary to detain [the applicant] under the Mental Health Act 1983 but it was decided that this was not necessary as he was, as I noted at the time, ‘quite compliant’ and had ‘not attempted to run away’. He was therefore admitted as an informal patient. If [the applicant] had resisted admission I would certainly have detained him under the [1983] Act as I was firmly of the view that he required in-patient treatment. This was clearly thought through and supported following discussion with [Dr P.], ward staff, other professionals and the Care Services Manager. An appropriate framework of care and treatment was implemented.”
40.  Lord Goff then noted how Dr M. had then
“... described how Mr and Mrs E. were informed on 22 July of [the applicant’s] admission, as was [the applicant’s] next of kin. At first, with the agreement of Mr and Mrs E., it was arranged that they would not visit [the applicant] for a few days, in accordance with the usual clinical practice. On 23 July Dr M. wrote to Mr and Mrs E. and in her letter invited them to come and meet her the following week when it was her intention to discuss the possibility of phased visits, but they did not accept this invitation to meet her. On the same day an advocacy worker was appointed as [the applicant’s] advocate. [The applicant] was again assessed. A programme of tests and observations was then put into effect.”
41.  Lord Goff continued to quote from Dr M.’s affidavit:
“As [the applicant] is an informal patient there has never been any attempt to detain him against his will or carry out any tests, observations or assessments to which he indicated a dislike or with which he refused to cooperate. [The applicant] has always accepted his medication which has always been administered orally. He was also fully compliant when blood was taken from him for testing. He did not however cooperate with the attempts that were made to carry out a CT scan and EEG, which were necessary in view of his old history of fits and temporal lobe abnormality, on 5 and 6 August 1997 and so these tests were abandoned. [The applicant] cooperated to a certain extent with the speech therapy assessment which was carried out on 15 September 1997 and the occupational therapy assessment. However, as soon as he showed any signs of distress the assessments were postponed and reviewed. [The applicant] is accommodated on an unlocked ward and has never attempted to leave the hospital but has accepted the change in his environment very well and is not distressed by it ... It was, in my professional opinion, in [the applicant’s] best interests to be admitted on 22 July 1997 and it is also in his best interests to continue with in-patient treatment to prevent further deterioration of his mental health. His discharge at this point in time would therefore be against medical advice. At the time of and since admission [the applicant] has been fully compliant with treatment and never indicated that he wishes to leave the hospital. In view of this it has not been necessary to detain him under the Act ... If [the applicant] stopped cooperating or indicated a wish to leave then I would have to consider at that time whether his condition warranted detention under section 3 of the Act. As these circumstances have not so far arisen detention has not been necessary.”
42.  Lord Goff considered that, in the light of the above account by Dr M., the following conclusions might be drawn:
“The first is that, as I have already recorded, although [the applicant] had been discharged from hospital into the community on a trial basis, and on that basis had gone to live with Mr and Mrs E. as his paid carers, nevertheless he had not been finally discharged. It followed that the appellant trust remained responsible for his treatment, and that it was in discharge of that responsibility that the steps described by Dr M. were taken. The second is that when, on 22 July, [the applicant] became agitated and acted violently, an emergency in any event arose which called for intervention, as a matter of necessity, in his best interests and, at least in the initial stages, to avoid danger to others. Plainly it was most appropriate that the appellant trust, and Dr M. in particular, should intervene in these circumstances; certainly Mr and Mrs E., as [the applicant’s] carers, could not assert any superior position. Third, I have no doubt that all the steps in fact taken, as described by Dr M., were in fact taken in the best interests of [the applicant] and, in so far as they might otherwise have constituted an invasion of his civil rights, were justified on the basis of the common-law doctrine of necessity.
I wish to add that the latter statement is as true of any restriction upon his freedom of movement as then occurred, as it is of any touching of his person. There were times during the episode when it might be said that [the applicant] was ‘detained’ in the sense that, in the absence of justification, the tort of false imprisonment would have been committed. I have particularly in mind the journey by ambulance from the Day Centre to the Accident and Emergency Unit. But that journey was plainly justified by necessity, as must frequently be so in the case of removal to hospital by ambulance of unfortunate people who have been taken ill or suffered injury and as a result are incapacitated from expressing consent. I wish further to add that I cannot see that Dr M.’s statements to the effect that she would if necessary have taken steps compulsorily to detain [the applicant] under the Act of 1983 have any impact on the above conclusions. Those concerned with the treatment and care of mentally disordered persons must always have this possibility in mind although, like Dr M., they will know that this power is only to be exercised in the last resort and they may hope, as in the present case, that it would prove to be unnecessary to exercise it. Such power, if exercised in accordance with the statute, is of course lawful. In the present case all the steps in fact taken by Dr M. were, in my opinion, lawful because justified under the common-law doctrine of necessity, and this conclusion is unaffected by her realisation that she might have to invoke the statutory power of detention.
Finally, the readmission of [the applicant] to hospital as an informal patient under section 131(1) of the Act of 1983 could not, in my opinion, constitute the tort of false imprisonment. His readmission, as such, did not constitute a deprivation of his liberty. As Dr M. stated in paragraph 9 of her affidavit, he was not kept in a locked ward after he was admitted. And the fact that she, like any other doctor in a situation such as this, had it in her mind that she might thereafter take steps to detain him compulsorily under the Act, did not give rise to his detention in fact at any earlier date. Furthermore, his treatment while in hospital was plainly justified on the basis of the common-law doctrine of necessity. It follows that none of these actions constituted any wrong against [the applicant].”
43.  For these reasons, Lord Goff allowed the appeal. He had two “subsidiary points”, the second one being as follows:
“... the function of the common-law doctrine of necessity [lies] in justifying actions which might otherwise be tortious, and so has the effect of providing a defence to actions in tort. The importance of this was, I believe, first revealed in the judgments in Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1. I wish, however, to express my gratitude to counsel for the appellants ... for drawing to our attention three earlier cases in which the doctrine was invoked, viz. Rex v. Coate (1772) Lofft 73, especially at p. 75, per Lord Mansfield, Scott v. Wakem (1862) 3 F. and F. 328, 333, per Bramwell B., and Symm v. Fraser (1863) 3 F. and F. 859, 883, per Cockburn CJ, all of which provide authority for the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary. I must confess that I was unaware of these authorities though, now that they have been drawn to my attention, I am not surprised that they should exist. The concept of necessity has its role to play in all branches of our law of obligations – in contract (see the cases on agency of necessity), in tort (see Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1), and in restitution (see the sections on necessity in the standard books on the subject) – and in our criminal law. It is therefore a concept of great importance. It is perhaps surprising, however, that the significant role it has to play in the law of torts has come to be recognised at so late a stage in the development of our law.”
44.  Lord Nolan, for his part, agreed with the Court of Appeal that the applicant had been detained: he referred to the contents of Dr M.’s long letter of 6 August 1997 and to the additional matters on which the Court of Appeal had relied in this respect (and quoted above). Nevertheless, he allowed the appeal as he was satisfied that
“the trust and its medical staff behaved throughout not only in what they judged to be the best interests of [the applicant], but in strict accordance with their common-law duty of care and the common-law principle of necessity”.
45.  Lord Steyn also allowed the appeal. He recognised that to uphold the decision of the Court of Appeal would be to ensure that a number of important protections applied to the applicant and that to allow the appeal would result in an indefensible gap in mental health law. However, he considered that it was possible, on a contextual interpretation of the 1983 Act, to allow the appeal.
46.  In the first place, he found that the applicant had been detained:
“It is unnecessary to attempt a comprehensive definition of detention. In my view, this case falls on the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention. The critical facts are as follows: (1)  When on 22 July 1997 at the Day Centre [the applicant] became agitated and started injuring himself, he was sedated and then physically supported and taken to the hospital. Even before sedation he was unable to express dissent to his removal to hospital. (2) Health care professionals exercised effective power over him. If [the applicant] had physically resisted, the psychiatrist would immediately have taken steps to ensure his compulsory admission. (3) In hospital staff regularly sedated him. That ensured that he remained tractable. This contrasts with the position when he was with carers: they seldom resorted to medication and then only in minimal doses. (4) The psychiatrist vetoed visits by the carers to [the applicant]. She did so, as she explained to the carers, in order to ensure that [the applicant] did not try to leave with them. The psychiatrist told the carers that [the applicant] would be released only when she, and other health care professionals, deemed it appropriate. (5) While [the applicant] was not in a locked ward, nurses closely monitored his reactions. Nurses were instructed to keep him under continuous observation and did so.
Counsel for the Trust and the Secretary of State argued that [the applicant] was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of [the applicant], any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital. And if [the applicant] had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that [the applicant] was free to go is a fairy tale. ... In my view [the applicant] was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty”.
47.  Secondly, he found that detention to be justified under the common-law doctrine of necessity:
“It is now necessary to consider whether there was lawful authority to justify the detention and any treatment of [the applicant]. This is a matter of statutory construction. But it is important to approach the mental health legislation against the context of the principles of the common law. The starting-point of the common law is that when a person lacks capacity, for whatever reason, to take decisions about medical treatment, it is necessary for other persons, with appropriate qualifications, to take such decision for him: Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1, at 55H, per Lord Brandon of Oakbrook. The principle of necessity may apply. For the purposes of the present case it has been assumed by all counsel that the requirements of the principle are simply that (1) there must be ‘a necessity to act when it is not practicable to communicate with the assisted person’ and (2) ‘that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person’: Re F., supra, per Lord Goff of Chieveley, at 75H. There was not unanimity on this point in Re F. But I am content to approach the matter in the same way as counsel did ... Against this common-law background the Percy Report recommended a shift from the ‘legalism’ whereby hospital patients were ‘certified’ by special procedures, to a situation in which most patients would be ‘informally’ received in hospital, the term ‘informally’ signifying ‘without any legal formality’. This was to be achieved by replacing the existing system ‘by the offer of care, without deprivation of liberty, to all who need it and are not unwilling to receive it’: see Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency (1954-1957) ... The desired objective was to avoid stigmatising patients and to avoid where possible the adverse effects of ‘sectioning’ patients. Where admission to hospital was required compulsion was to be regarded as a measure of last resort. The Mental Health Act of 1959 introduced the recommended changes. Section 5(1) was the critical provision. ... Counsel appearing on behalf of [the applicant] accepted that the effect of section 5 was to leave in place the common-law principle of necessity as a justification for informally receiving in hospital or mental nursing homes compliant incapacitated patients.
In 1982 Parliament substantially amended the Act of 1959. In 1983 Parliament enacted a consolidating statute with amendments, namely the Mental Health Act 1983. By section 131(1) of the Act of 1983 the provisions of section 5(1) of the Act of 1959 were re-enacted verbatim. ... Prima facie section 131(1) must be given the same meaning as section 5(1). On this basis, section 131(1) also preserved the common-law principle of necessity as a means of admitting compliant incapacitated individuals. But counsel for [the applicant] submitted that section 131(1), unlike its predecessor, only applies to consenting capacitated patients. He argued that contextual differences between the statutes of 1959 and 1983 required the court to interpret the language of section 131(1) of the Act of 1983 in a narrower sense than section 5(1) of the Act of 1959. ... On orthodox principles of statutory interpretation the conclusion cannot be avoided that section 131(1) permits the admission of compliant incapacitated patients where the requirements of the principle of necessity are satisfied. Having had the benefit of the fuller argument produced by the intervention of the Secretary of State, I have to accept that the view of the Court of Appeal on the meaning of section 131(1) cannot be upheld.”
48.  Accordingly, the common-law doctrine of necessity had been preserved by section 131(1) of the 1983 Act and the applicant’s detention and treatment were justified on that basis.
49.  Lord Steyn went on to note that the effect of the House of Lords’ judgment was to leave compliant incapacitated patients without the safeguards enshrined in the 1983 Act:
“This is an unfortunate result. The common-law principle of necessity is a useful concept, but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrist and other health care professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus nor judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reason to withhold the specific and effective protections of [the 1983 Act] from a large class of vulnerable mentally incapacitated individuals. Their moral right to be treated with dignity requires nothing less. The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration.”
50.  In March 2000 Mr and Mrs E. complained to the Commissioner about the applicant’s readmission to hospital. The complaints subjected to investigation were: (a) that the clinical decision to admit the applicant on 22 July 1997 was unreasonable; and (b) that the clinical management of his admission was inadequate. The independent assessors investigated. In their report, they considered that the applicant’s admission to the IBU on 22 July 1997 was “probably unavoidable”. He had a significantly better quality of life with his carers and more serious consideration should have been given to sending him home on the day his carers had been located or, at least, the following day. The assessors considered that it was difficult to see why, even if it was necessary to retain him overnight, he was not discharged the following day and his subsequent evaluation conducted on an outpatient basis. The process of assessment of the applicant had been too long and resources should have been available to speed up that process. In this latter respect, the assessors did not believe that any of the clinicians were acting irresponsibly or maliciously and their main recommendation for the future was that admissions to the IBU be “strictly time-limited” and that adequate resources be made available to enable a multi-disciplinary assessment to be carried out if at all possible on an outpatient basis and, if not, as speedily as possible.
51.  The Commissioner, in his report of 15 November 2001, agreed with the assessors’ conclusions, adopted their recommendations and conveyed the hospital’s apologies to Mr and Mrs E. for the shortcomings identified. The hospital had also informed the Commissioner that, through the Intensive Assessment and Treatment Service, the assessors’ recommendations for outpatient assessment had been implemented.